REPUBLIC vs. CIRCUIT COURT, SEKONDI; EX PARTE ADOMTHAR TIMBER INDUSTRIES [1989]DLCA666

Date	1989-01-12
Suit No.
Citation No.	[1989]DLCA666

ESSILFIE-BONZIE J.

FORSON FOR THE APPLICANTS.

FOSU FOR THE RESPONDENTS.

[1989]DLCA666
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>CIRCUIT COURT, SEKONDI; EX PARTE ADOMTHAR TIMBER INDUSTRIES<o:p></o:p>[HIGH COURT, SEKONDI] <o:p></o:p>[1989-90] 2 GLR 583<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
12
JANUARY 1989<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

FORSON FOR THE APPLICANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ESSILFIE-BONZIE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ESSILFIE-BONZIE J.<o:p></o:p>This is
an application by Adomthar Timber Industries Ltd. Takoradi (hereinafter
referred to as the defendants) praying for an order of certiorari to quash the
judgment of the Circuit Court, Sekondi dated 16 September 1988 for want of jurisdiction.
The facts of the case, as can be gleaned from the affidavits filed, are that
Afrangua Construction Works Ltd., Kumasi now the “interested” party, sued the
defendants at the Circuit Court, Sekondi claiming the following reliefs:<o:p></o:p>“(1) The plaintiffs’
claim against the defendants is for ¢1.5 million upon a National Investment
Bank cheque No. 550268 dated 2 February 1988 drawn by the defendant. <o:p></o:p>(2) An
order compelling the defendants to surrender one D7E Caterpillar now in the
possession of the defendants. (3) Mesne profits from 1 May 1988 to date of
surrender of the said Caterpillar D7E at the rate of ¢55,000 per diem.”<o:p></o:p><o:p>&nbsp;</o:p>On 16
September 1988, the interested party (hereinafter referred to as the plaintiff)
moved the circuit court for a default judgment. The application was granted. On
27 September 1988 the defendants were served with an entry of judgment, exhibit
A. It is the default judgment of the circuit court given on 16 September 1988
which is being challenged.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants did not exhibit a copy of the said judgment being sought to be
quashed. They attached to their application the entry of judgment which was
marked as exhibit A. Exhibit A shows that the alleged judgment of the circuit
court was for the sum of ¢9,195,000. In his submission learned counsel for the
applicants made reference to the Courts (Amendment) Law, 1987 (P.N.D.C.L. 191)
and contended that since the jurisdiction of the circuit court is for claims
not exceeding ¢5,000,000 the circuit judge exceeded his jurisdiction when he
gave judgment for a claim of ¢9,195,000. The judgment is therefore ultra vires
the jurisdiction of the circuit court and should be quashed.<o:p></o:p><o:p>&nbsp;</o:p>Mr. Fosu,
learned counsel for the plaintiffs, opposed the application. He submitted that
the application before the court is incompetent in the sense that the judgment
being complained of was not exhibited by the applicants. The entry of judgment
which is the document attached by the applicants, is not a judgment of the
court. It was prepared by the solicitor of the plaintiffs in the case and
certiorari cannot lie to quash it. Mr. Forson conceded that a copy of the
judgment being attacked was not attached to the application in compliance with
Order 59, r. 7 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) but
says that since the plaintiff has filed a certified copy of the judgment, the
court ought to consider it to find out if the circuit court had jurisdiction or
not. Counsel for the plaintiffs also submitted that even if the trial court has
given judgment for ¢9,195,000, that alone does not nullify the proceedings. He
added that the plaintiffs were claiming three reliefs and therefore a judgment
for ¢9,195,000, can be severed from the judgment for the other reliefs.<o:p></o:p><o:p>&nbsp;</o:p>The
express provisions of Order 59, r. 7 (1) of L.N. 140A reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“7. (1)
In the case of an application for an order of certiorari to remove any
proceedings for the purpose of their being quashed, the applicant shall not
question the validity of any order, warrant, commitment, conviction, inquisition
or record, unless before the hearing of the motion or summons he has lodged a
copy thereof verified by affidavit in the Registry or accounts for his failure
to do so to the satisfaction of the Court or Judge hearing the motion or
summons.”<o:p></o:p>